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The Supreme Court took a tougher stance on employer liability for workplace sexual harassment this past year. Two cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, have made it clear to employers that they may be liable for sexual harassment in the workplace, even if they did not know about the harassment.

In Faragher, a part-time life guard sued the City under a “hostile work environment” sexual harassment theory. Throughout Faragher’s five years as a life guard every summer for the City of Boca Raton, she was subjected to offensive language, sexual advances, and unwanted touching by two of her supervisors. Even though the City had a sexual harassment policy in place, neither one of the supervisors knew about the policy. Faragher spoke informally about the harassment but never reported it. Eventually a former lifeguard reported the supervisors’ harassment and they were investigated and disciplined. Shortly thereafter, Faragher resigned and filed suit against her employer under Title VII.

The Supreme Court held the City liable for the supervisors’ sexual harassment even though it was unaware of it. The Court said that in cases where there is a “tangible employment action,” the employer will always be liable regardless of defenses, policies or procedures. “Tangible employment action” means the harassed employee experiences a tangible loss of the benefits of his or her employment (e.g., loss of job, demotion, decreased compensation, or negative change in duties). In cases like Faragher where there was no tangible employment action, employers will only be safe from liability if they can show that they had an effective sexual harassment policy in place to prevent and promptly correct any sexual harassment and that the victim unreasonably failed to utilize that policy and its procedures. Here, the Court found the City’s sexual harassment policy inadequate because the supervisors did not know it even existed.

In Ellerth, an employee alleged sexual harassment by one of her supervisors. The employer had a policy in place and the employee never reported the harassment to anyone while she was employed there. The Supreme Court first found that the employee suffered no tangible employment action. Then the Court sent the case back down to the trial court to determine whether or not the employer had an effective sexual harassment policy in place.

The Employer’s Limited Defense

Employees still have to prove the elements of sexual harassment before the question of employer liability ever arises. If the employee can prove the elements of sexual harassment and that a tangible employment action resulted, the employer will be held liable regardless of its policies, procedures or what it might have done to correct the harassment.

On the other hand, if the employee can prove the elements of sexual harassment but cannot show a tangible employment action resulted, the employer can avoid liability by establishing the defense set forth in the Faragher and Ellerth cases.

There are two separate components to this defense. First, the employer has to prove that it exercised reasonable care to prevent and promptly correct any harassing behavior and, second, that the employee unreasonably failed to take advantage of any workplace policies provided to address workplace sexual harassment.

This is clearly a defense for the employer that is only available in limited circumstances. In order to maximize the availability of the defense, employers should focus on three essential steps: first, make sure to have a written sexual harassment policy; second, provide regular and thorough training and education to employees about sexual harassment and the policy; and third, upon receipt of a sexual harassment complaint, undertake a prompt and thorough investigation with appropriate corrective action. These steps are discussed in more detail below.

1. A Written Policy.

The standards contained in the U.S. Equal Employment Opportunity Commission’s (“EEOC”) Guidelines and the recent Supreme Court rulings suggest that an effective sexual harassment policy should have the following characteristics.

(a) The policy should be in writing.

Employers should examine their current policies. For those employers that do not have a policy, they should adopt one immediately. The policy must be in writing and should be written in plain English, easy enough for all employees to understand. Companies that employ people who do not speak English should be sure that the policy is written in the other languages of their workforces as well. The format of the policy should be user-friendly and easy to follow for all employees.

(b) The policy should define sexual harassment.

The policy should clearly and precisely state the definition of sexual harassment. The definition of sexual harassment should contain the same concepts as the EEOC’s definition, which has also been adopted by the courts. EEOC Guidelines define sexual harassment as follows: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” 29 C.F.R. 1604.11(a). Employers should be sure to explain that sexual harassment includes same-sex harassment. The definition, explanations and examples should be as clear as possible so that any employee can identify what is and what is not sexual harassment.

(c) The policy should be a “Zero Tolerance Policy.”

he policy should expressly state that sexual harassment will not be tolerated by the company. The policy should explain that it not only applies to the workplace during normal business hours, but also to all work-related social and business functions, whether on or off the company’s premises, and also while employees are on business-related travel.

(d) The policy should encourage employees to report harassment.

Employees must know when, how and to whom they should speak about any incidents of sexual harassment. They should immediately report any sexual harassment to one of several different company officials. These officials should be listed by name in your policy. There should be both male and female officials named. Explain that an employee can make a complaint without his or her direct supervisor’s involvement. Policies must contain this “by-pass” provision. Also, do not put limitations or restrictions on complaint policies or procedures, such as “complaints must be in writing.” Moreover, employees should know what to expect during the investigation and resolution of the complaint. Specifically prohibit retaliation in your policy. Let the employees know that no adverse action will be taken against them because of their reporting, even if after the investigation no sexual harassment was found. Promise as much confidentiality as possible under the circumstances. Employees frequently want assurance that their identities will remain confidential. Some anonymity, however, might necessarily be lost during the investigation.

(e) The policy should be disseminated and acknowledged.

Once a sound policy is developed, pass it out to all your employees. Every facility and every branch of your business should have copies of the policy (bulletin boards, above water fountains, mailrooms, etc.) Employees should sign forms acknowledging receipt and understanding of the policy. The policy should be handed out at all training seminars and during all sexual harassment investigations.

2. Education and Training.

The second essential step for an employer to take to obtain liability protection and to prevent harassment is training and education for the workforce. Employers should conduct regular training sessions for their employees. Hand out copies of the policy and go through it line by line, section by section. Explain that it is a “Zero Tolerance Policy.” Educate employees and managers about what type of conduct constitutes sexual harassment. Teach employees, supervisors, and managers the procedures on how to make a complaint, whom to complain to, and when the complaint should be made. Encourage employees to report any questionable behavior. Assure them that no retaliation will be taken and that confidentiality is a priority (although not a guarantee). Also, let employees know that if they unreasonably fail to complain, their employer may not be liable for whatever consequences resulted from the harassment. Training and education are the keys to prevention. Training and education should be ongoing and kept fresh in the minds of all employees. Redistribute the policy to all employees once in awhile. Write memos as reminders to employees to review the policy. Consider getting help from outside consultants to provide the training and education.

Those whom the company designates to receive complaints also need training. They should know what to do with complaints once made. Supervisors and managers need training on identifying questionable conduct before it rises to the level of sexual harassment. They need to know how to intervene to prevent the harassment. Company officials designated to investigate the complaints need training on how to conduct a thorough investigation, how to remain impartial, and how to protect as much as possible the confidentiality of the complainant. Those designated to resolve complaints need training regarding how to approach the evidence fairly, justly and without bias.

3. Investigating Complaints and Taking Corrective Action.

The third step for maximizing protection against liability for a sexual harassment claim is to make sure that complaints are properly addressed. Do not delay. Investigate immediately and keep specific records of complaints and investigations. The employer should keep detailed records of the investigation in a secure location separate from personnel files. A thorough investigation should include interviews of all employees involved. The interviews as well as the entire investigation should be treated with utmost sensitivity, professionalism, and as much confidentiality as possible. Both the victim and the alleged harasser need to be informed of the employer’s neutrality until the entire investigation is complete. Confidentiality and neutrality are obviously important for the complaining employee, but they are just as important for the alleged harasser; if the claim turns out to be unfounded, unwarranted publicity could harm the alleged harasser unfairly and could expose the employer to liability.

If an investigation shows that the employer’s sexual harassment policy was violated, the employer must be prepared to take prompt corrective action. The type of action the employer takes is subjective and the employer must deal with each violation on a case-by-case basis. A “Zero Tolerance Policy” suggests that if any policy violation occurs, the harasser may be terminated from employment. Employers, however, must use some individual judgment based on the severity of the conduct and the specific circumstances of each case. EEOC Guidelines define corrective action as “whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring.” See, “Policy Guidance on Current Issues of Sexual Harassment,” Sec. 4.E.2 (March 19, 1990). If the corrective action is something less than discharge of the harasser, the employer should periodically meet with the victim to ensure that the harassment has not resumed or that he or she has not suffered any retaliation. Also, it is important to treat all harassers equally. This means not only should a correlation exist between the severity of the harassment and the corrective action taken, but also, a correlation should exist between the corrective action taken for sexual harassment and the corrective action taken in your company for race, gender, age, national origin, or other harassment.

In appropriate circumstances, action short of termination of the harasser could include special sexual harassment training and education and reassignment of the harasser or the victim. In any case, it is wise to solicit the victim’s opinion as to appropriate corrective action (although not to be bound by it), and to report to the victim about the corrective action that the employer has decided upon.

Summary Conclusion

The Supreme Court has challenged employers to crack down on sexual harassment by giving them very little room to excuse themselves from responsibility. It is possible, however, for employers to increase their chances of a successful defense and conceivably prevent the harassment altogether by adopting a “Zero Tolerance Policy” incorporating all of the above guidelines, providing for effective implementation, education and training, and promptly investigating, and resolving any claims that are made.